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LEGAL ASPECTS 



OF THE 



CONTROVERSY BETWEEN 

THE AMERICAN COLONIES AND 

GREAT BRITAI N 



A LECTURE 






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BY 



BENJAMIN HARRISON 
'I 









COPYEIGHT 1894 
Bv Bkn.iamin Hakrison 

[All rights reserved] 

A. 



LEGAL ASPECIS OF THE CONTROVERSY BETWEEN 

THE AMERICAN COLONIES AND 

GREAT BRITAIN. 



It does not consist witli my purpose to pursue the history of the 
controversies l)etween the coh)nies and the mother country ; but a 
ghmce at the legal aspects of the great contentions is necessary. 

The contest was, in a large sense, single and common ; though 
it naturally had diverse manifestations, at different times and in 
the different colonies. It was one assault breaking upon different 
salients of the fortress of liberty. As a debate it was conducted, 
on the part of the colonies, with wonderful moderation, with the 
highest courage, and the most conspicuous ability. The petitions, 
addresses, and public papers of that time, proceeding from Ameri- 
can sources, are not excelled in style or strength by any state 
papers of that great historical period. In the earlier and middle 
stages of the controversy the remonstrances and petitions were full 
of expressions of the most devoted loyalty to the J]nglish king. 
No doubt these expressions were sincere, as such things go. The 
conception of a free re])ublican state came late and doubtingly into 
the minds of the most radical of the colonial leaders, and could 
not be sent out without a cloak until war was flagrant. Habit, 
family associations, a proud and reverent love for the old king- 
dom and the old home, and the need of a powerful protector against 
foreign enemies, kept the colonists loyal, in a sense — much as those 
who deposed James and set William and Mary upon the throne, 
under the act of settlement, were loyal Englishmen. The colonists 
did not desire separation ; they were more than willing to remain 
English subjects ; but would suffer no curtailment of the traditional 
rights of Englishmen. More liberty, rather than less, was the sug- 
gestion of their experience and of the conditions that surrounded 
them. There has V)een much debate as to the E^incerity of the col- 
onists in their frequent protestations of loyalty, in view of their 
frequent acts of resistance to the royal edicts. But the solution is 
easy ; they were loyal to an English King who ruled within consti- 
tutional limitations and within their special charters, and made 
his government subserve tlie right ends of government ; but they 



2 LEGAL ASPECTS OK THE COXTKOVEKSV 

would judge these matters themselves. The motto, "The king can 
do no wrong" implies the amenability in English law of his coun- 
cillors and ministers for wrongs done. 

This view was thus expressed in a resolution of the Congress of 
1775 (December 6th): "But is this traitorously or against the 
king ? We view him as the constitution represents him. That 
tells us he can do no wrong. The cruel and illegal attacks, which 
we oppose, have no foundation in the royal authority. We will not, 
on our part, lose the distinction between the king and his minis- 
ters : happy would it have been for some former princes had it 
always been preserved on the part t)f the crown." — Jovr. (Umg., I, 
200. 

J^peaking with fine satire of the charge that Americans had from 
the beginning contemplated independence, Justice Drayton, of 
South Carolina, in a charge to the grand jury in 177(>, said: 
"There was a time when the American army before Boston had 
not a thousand-weight of gunpowder —the forces were unable to 
advance into Canada, until they received a small suj)ply of j owder 
from this country, and for which the general (congress ex])ressly 
sent — and when we took up arms a few months before, we begun 
with a stock of five hundred-weight ! These grand magazines of 
ammunition demonstrate, to be sure, that America, or even Massa- 
chusetts Bay, was prej)aring to enter the military road to inde- 
pendence ! " 

And George Mason, writing in 177S, says of the question of the 
first intention of the colonists: 

"Equally false is the assertion that independence was originally 
designed here. Things have gone such lengths, that it is a matter 
of moonshine to us whether independence was first intended or 
not, and therefore we may now be believed. The truth is, we have 
l)een forced into it." 

The inherited English reverence for the king had a strong hold 
upon the minds of the colonists. The most ardent and radical of 
the colonial leaders held his tongue and pen under a severe restraint 
when he spoke of the king, h^ucli was the reverence of the masses 
of the people for the crown that, almost u]> to the time of the spill- 
ing of blood, denunciation of the king, or a proj)Osal to throw 'b'ff 
their allegiance to him, would have been received with general dis- 
favor. When the Congress of 1774 assembled, the general thought 
and hopes of the people ran in the direction of a peaceable adjust- 
ment upon the basis of the continued sovereignty of the Englii-li 
king. Thev did not complain of the king. Imt to him much as a 



BKTWKKN THK AMKUICAN COLONIES AND (iKlOAT BKITAJN. 3 

boy niijfht complain to an absent father of the cruelties of his tutor. 
There were historical precedents for this strange mingling of defer- 
ence and resistance. 

Tlie men of Flushing swore fidelity to the king and to William 
of Orange as his stadt-holder when they were in arms against Alva, 
the king's governor; and Henry of Navarre wrote to Henry 111, 
"Thank God, 1 have beaten your enemies and your army." 

Ho the convention of deinities of New Hampshire, in January 
1775, urged the training of the militia for the defense of the country 
if it should "ever be invaded by his majesty's enemies," who were 
his majesty's soldiers. 

The colonists were ({uite sincere when they said they did not aim 
at independence; but there was never a time when, presented as the 
alternative of arbitrary rule, they would not have embraced it. 
Barre, in his famous speech upon the Stamp Act, in the English 
House of Commons, said of the colonists: "The people there are as 
truly loyal, I believe, as any subjects the king has; but a people 
jealous of their liberties, and who will vindicate them if they should 
be violated." — Rise of the Republic, 176. 

In an address to the people of Great Britain, Ocotober 1774, 
Congress said: " Permit us to be as free as yourselves, and we shall 
ever esteem a union with you to be our greatest glory and our 
greatest happiness; we shall ever be willing to contribute all in our 
power to the welfare of the empire; we shall consider your enemies 
as our enemies, and your interest as our own. But, if you are de- 
termined that your ministers shall wantonly sport with the rights 
of mankind — if neither the Voice of justice, the dictates of the law, 
the principles of the constitution, or the suggestions of humanity, 
can restrain your hands from shedding human blood in such an 
impious cause, we must then tell you that we will never submit to be 
hewers of wood or drawers of water for any ministry or nation in 
the world." 

And the Congress of 1775 made this response: " We are accused 
of 'forgetting the allegiance which we owe to the power that 
has protected and sustained us.' Why all this ambiguity and oi)- 
scurity in what ought to be so plain and obvious as that he who 
runs may read it? What allegiance is it that we forget? Alleg- 
iance to parliament? We never owed — we never owned it. Alleg- 
iance to our king? Our words have ever avowed it. our conduct 
has ever been consistent with it.'" 

The English government by a cabinet was not then in as perfect 
operation as now: but our ancestors were not pursuing an altogether 



4 LEGAL ASPECTS OF THE CONTROVERSY 

fanciful line when they appealed to.the king against the ministry. 
If one of the present English colonies should suffer oppression, it 
would justly and strictly be chargeal>le to Lord Rosebery and not 
to the queen. 

It may be well hero to say a further word as to the source of the 
British dominion in the American colonies. If that dominion had 
its origin in discovery and occupancy, the powers of the crown and 
the rights of the colonists were very different from what they would 
have been if the dominion had been acquired by conquest. 

Mr. Blackstone's view was that the lands in America had been 
acquired by conquest and the rule as to such colonies he states thus: 
" But in conquered or ceded countries, that have already laws of 
their own, the king may, indeed, alter and change those laws; but, till 
he does actually change them, the ancient laws of the country remain, 
unless such as are against the law of God, as in the case of an infidel 
country." While as to newly discovered lands he says: "For it 
hath been held, that if an uninhabited country be discovered and 
planted by English subjects, all the laws then in being, which are 
the birthright of every subject, are immediately there in force." 

Judge Story, in his commentaries, satisfactorily refutes this 
view and shows that the claim of England and, indeed, of all the 
European governments, to American territory, was based upon dis- 
covery. This was true, he thinks, even of the Dutch settlements of 
New York, for England did not rest her title to that province upon 
conquest, but rather the conquest upon an antecedent right founded 
upon discovery. 

The Indians, Judge Story shows, were not a conquered people ; 
and, if they were such, had no laws or organized government which 
could be assumed and enforced until the pleasure of the king was 
known. He says: "Even in case of a conquered country where 
there are no laws at all existing, or none which are adapted to a 
civilized community, or where the laws are silent, or are rejected 
and none substituted, the territory must be governed according to 
the rules of natural equity and right. And Englishmen removing 
thither must be deemed to carry with them those rights and privi- 
leges which belong to them in their native country." — Story, 1, 154. 

He further shows that, even if the doctrine of Blackstone were 
right upon general principles, it did not apply to the American 
colonies. — Story, I, 1£6. 

That we may understand what particular rights were claimed 
by the colonists as Englishmen, or under their charters, and the 
view taken of these claims in England, I (juote here from some of 



BETWEEN THE AMERICAN COLONIES AND GREAT BRITAIN. 5 

the most careful and notaV)le expressions of the time. The right 
that came most to the front in the debate was, as I have said, the 
right to be exempt from taxes not voted by themselves ; but it was 
soon found that this involved the larger question as to the power of 
Parliament to legislate in other, or indeed in any matters, affecting 
the colonies. 

The prevailing English view was that the legislative power of 
Parliament extended to all colonial matters and was supreme. 
This view was expressed in a Declarative Act in these unambiguous 
and sweeping sentences : "All His Majesty's colonies and planta- 
tions in America have been, are, and of right ought to be, subor- 
dinate to and dependent upon the imperial crown and Parliament 
of Great Britain, who have full power and authority to make laws 
and statutes of sufficient validity to bind the colonies and people 
of America, subjects to the crown of Great Britain, in all cases 
whatsoever." 

But there were not a few liberal and learned English statesmen 
who took a different view and boldly opposed the oppressive meas- 
ures of the ministry. The power of the Parliament to tax the 
colonies was denied by some of these. 

About 1680 the Marquis of Halifax, a member of the privy 
council, in opposing arbitrary measures against the colonies, de- 
clared that " he could not agree to live under a king who should 
have it in his power to take when he pleased the money which he 
(Halifax) had in his pocket." — Rise of Rep., 78. 

Mr. Burke, in his speech on the taxation of America in 1774, 
says, speaking of the contest for liberty in England : " They took 
infinite pains to inculcate, as a fundamental principle, that in all 
monarchies the people must in effect themselves mediately or 
immediately possess the power of granting their own money, or no 
shadow of liberty could subsist. The colonies draw from you, as 
with their life-blood, these ideas and principles. Their love of 
liberty, as with you, is fixed and attached on this specific point of 
taxing. Liberty might be safe or might be endangered in twenty 
other particulars, without their being much pleased or alarmed. 
Here they felt its pulse ; and, as they found that beat) they thought 
themselves sick or sound. I do not say whether they were right or 
wrong in applying your general argument to their own case. It is 
not easy, indeed, to make a monopoly of theorems and corollaries. 
The fact is, that they did thus apply those general arguments ; and 
your mode of governing them, whether through lenity or indo- 
lence, through wisdom or mistake, confirmed them in the imagina- 



6 LEGAL ASPECTS OF THE CONTROVERSY 

tion that they, as well as you, had an interest in these common 
principles." 

Among other circumstances which had brought the colonists to 
the views of liberty held by them, Mr. Burke speaks of the effect of 
education, and says that in no country, perhaps, in the world was 
the law so generally studied. 

The Earl of Chatham, speaking on the bill declaring the sov- 
ereignty of Great Britain over the colonies, said : " My position is 
this — I repeat it — I will maintain it to my last hour — tax- 
ation and representation are inseparal)le ; this position is founded 
on the laws of nature ; it is itself an eternal law of nature ; 
for whatever is a man's own is absolutely his own ; no man 
has a right to take it from him without his consent, either 
expressed by himself or representative ; whoever attempt? to do it 
attempts an injury; whoever does it commits a robbery; he throws 
down and destroys the distinction between liberty and slavery. 
Taxation and representation are coeval with and essential to this 
constitution." In the same speech he recites the fact that the 
Palatinate of Chester had resisted a tax upon the ground of non- 
representation ; and, upon their petition, the king had allowed 
their plea. "In short, my lord," said he, " from the whole of our 
history, from the earliest period, you will find that taxation and 
representation were always united." — Niles^ Principles and Acts 
of Revolution. 

Pitt, in his speech in the House of Lords, in December, 1775, 
said: " Let the sacredness of their property remain inviolate; let 
it be taxable only by their own consent, given in their provincial 
assemblies, else it will cease to be ])roperty." And again, in the 
same speech, he said: "Let this distinction then remain forever as- 
certained. Taxation is theirs, commercial regulation is ours. As 
an American, I would recognize to England her supreme right of 
regulating commerce and navigation. As an Englishman by birth 
and principle, I recognize to the Americans their supreme, unalien- 
able right to their property; a right which they are justified in the 
defence of, to the extremity." (458) 

A few quotations now setting forth the American view — chiefly 
from the resolves of Congress and the colonial assemblies— will en- 
able us to h: ve a clear comprehension of the great issue that was 
about to be set down for trial. 

As early as 1G80 we have a voice from New Jersey declaring 
that "It was a fundamental in their constitution and government 
that the king of England could not justly take his subjects' goods 
without their consent." 



BETWEEN THE AMERICAN COLONIES AND GREAT BRITAIN. 7 

Among the declarations of the Continental Congress of 1765 was 
this: " That all supplies to the crown, heing free gifts of the people, 
it is unreasonable and inconsistent with the principles and spirit of 
the British constitution, for the people of Great Britain to grant to 
his majesty the property of the colonists." 

In the address of this Congress to the House of Commons it is 
said " that the parliament, adhering strictly to the principle of the 
constitution, have never hitherto taxed any but those who were 
therein actually represented; for this reason we humbly apprehend, 
they never have taxed Ireland, nor any othejr of the subjects with- 
out the realm." In this Congress there was much discussion as to 
the basis or origin of the rights claimed by the colonies, and in the 
course of the discussion Christopner Gadsden said: "A confirma- 
tion of our essential and common rights as Englishmen may be 
pleaded from charters safely enough; but any further dependence 
on them may be fatal. We should stand upon the broad common 
ground of those natuial rights that we all feel and know as men and 
as descendants of Englishmen. I wish the charters may not en- 
snare us at last by drawing different colonies to act differently in 
this great cause. Whenever that is the case, all will l)e over with 
the whole. There ought to be no New England man, no New 
Yorker, known on the continent; but all of us Americans." How 
wisely, how nobly spoken! And this voice was from South Caro- 
lina — "■ All of us Americans." The way was long from provin- 
cial narrowness and jealousy to a broad nationalism; from a local 
citizenship, of which the world took no notice, to a national citizen- 
ship that l)oldly challenged the world's deference. But in 1865 — 
just one hundred years after the speaking of these immortal words 
— the hope of the eloquent Sou.h Carolinian bursts into the dawn; 
and today, as never before, we are " all of us Americans." 

Among the resolutions adopted by the Congress of (October 14) 
1774, was the following: " Resolved, 4, that the foundation of 
English liberty, and of all free government, is a right in the people 
to participate in their legislative council ; and. as the English 
colonists are not represented, and from their local and other circum- 
stances, cannot properly be represented in the British parliament, 
they are entitled to a free and exclusive power of legislation in their 
several provincial legislatures, where their right of representation 
can alone be preserved, in all cases of taxation and internal polity, 
subject only to the negative of their sovereign, in such manner as 
has heretofore been used and accustomed. But, from the necessity 
of the case, and a regard to the mutual interest of both countries, 
we cheerfully consent to the opeiation of such acts of the British 



O LEGAL ASPECTS OF THE CONTROVERSY 

parliament as are bona fide, restrained to the regulation of our ex- 
ternal commerce, for the purpose of securing the commercial ad- 
vantages of the whole empire to the mother country, and the 
commercial benefits of its respective members, excluding every idea 
of taxation internal or external for raising a revenue on the sub- 
jects in America without their consent." 

It seems that the committee was hopelessly divided on the ques- 
tion of the powers of Parliament and that the terms used in the 4th 
resolution, as adopted, were accepted as a compromise, not of opin- 
ions but of phrases; a practice quite familiar in modern political 
conventions. Mr. John Adams suggested the declaration that, from 
" the necessity of the case " the colonists " consented " to the opera- 
tion of laws regulating external commerce, excluding " every idea of 
taxation internal or external for raising a revenue on the subjects 
in America without their consent." The one side could argue that 
this was a consent to the rightfulness of such laws, and the other that 
the laws derived their rightfulness from the consent; while the 
denial of every idea of taxation left the one side free to say, in a 
particular case, that taxation was not the idea, but only an inci- 
dent of the law; and the other to argue that where taxation re- 
sulted it must have been intended. 

This resolution has an especial significance in two particulars- 
first, it declares that the colonies could not be properly represented 
in the British Parliament; and second, it expresses a consent to the 
general regulations of commerce by the Parliament, provided every 
idea of revenue was excluded. The last was a compromise view — a 
concession in the interests of peace; but the binding force of parlia- 
mentary navigation acts was distinctly put upon the consent of the 
colonies. 

In a declaration by the Congress of 1775 justifying resistance — 
after enumerating some of the colonial grievances — it is said: " But 
why should we enumeiate our injuries in detail? By one statute it is 
declared that parliament can ' of right make laws to bind us in all 
cases whatsoever.' What is to defend us against so enormous, so 
unlimited a power? Not a single man of those who assume it, is 
chosen by us; or is subject to our control or influence; but on the 
contrary, they are all of them exempt from the operation of such laws, 
and an American revenue, if not diverted from the ostensible pur- 
poses for which it is raised, would actually lighten their own bur- 
dens in proportion as they increase ours." 

The colonists would not be bound by acts of Parliament because 
they were not represented there ; but would they have accepted 



BETWEEN THE AMERICAN COLONIES AND GREAT BRITAIN. 9 

representation in Parliament as a basis of settlement ? I think 
not. The letter of appointment and instruction from the Assembly 
of Massachusetts to the delegates of the colony to the Congress of 
1765, which assembled in New York, contained these paragraphs : 
" If it should be said that we are in any manner represented in 
Parliament you must by no means concede to it ; it is an opinion 
which this house cannot see the least reason to adopt. Further 
the house think that such a representation of the colonies as British 
subjects are to enjoy, would be attended with the greatest difficulty, 
if it is not absolutely impracticable, and therefore, you are not to 
urge or consent to any proposal for any representation, if such be 
made in the Congress." 

In speaking of the English opposition to the suggestion that 
the difficulties between the mother country and the colonies might 
be obviated by admitting representatives of the colonies in Par- 
liament, Doctor Franklin said : "But the pride of this people 
cannot bear the thought of it, and therefore it will be delayed. 
Every man in England seems to consider himself as a piece of a 
sovereign over America, seems to jostle himself into the throne with 
the king and talk of ' our subjects in the colonies.' " 

They would not be taxed by Parliament, because they were not 
represented in Parliament, and they did not seek representation in 
Parliament because it could not in the nature of things be ade- 
quate. It would have been delusive — no better practically than 
the then prevailing system of maintaining colonial agents in Lon- 
don. The colonial members in the House of Commons could not 
defeat, and their presence there could only give sanction to hostile 
legislation. Taxes might have been voted without the consent of a 
single representative of the communities from which the levies were 
to be raised, and by the votes of those whose burdens would have 
been lightened by the legislation. The grants would still have 
been by the people of Great Britain of the property of the colonists. 
The argument of the colonists stated in full was : We cannot law- 
fully be taxed by a body in which we have no representation. We 
are not represented in the English Parliament ; therefore we cannot 
be taxed by Parliament. We cannot in the nature of things have 
any real representation in the Parliament — therefore we will be 
taxed only l>y our colonial assemblies. 

Our forefathers were wise, but very practical men ; not mere 
casuists or philosophers. They saw that an admission of the 
power of the Parliament to tax them involved the destruction of 
their liberties and the confiscation of their property — and with an 



10 LEGAL ASPECTS OP THE CONTROVERSY 

alertness and courage that was. admirable they resisted. They 
would not admit the tip of the camel's nose inside the tent. They 
maintained with much learning, and with convincing force, that 
the Parliament could not do this or that — and this or that in- 
cluded pretty much every act that affected them injuriously ; but 
they made no schedule of the things Parliament might do. They 
at once boldly joined issue with the parliamentary declaration that 
it was authorized '' to bind the colonies and people of America in 
all cases whatsoever." Possibly there were cases in which Parlia- 
ment might legislate for them in an indirect way ; but they would 
not attempt general definitions ; they would deal only with par- 
ticulars — with the concrete an 1 not with the abstract — they would 
see the proposed statute and admit or exclude it. Just what the 
powers of Parliament over the colonies were was a hard question, 
and is still a hard question for the student of constitutional his- 
tory. There seems to have been no safe middle ground found be- 
tween the admission of full powers on the one hand, and a total 
denial of any on the other. Satisfactory English precedents were 
wanting. That taxes were grants to be freely voted by those who 
were to pay them, through their representatives, was an established 
principle. But how far general laws, such as laws regulating 
navigation and other general interests of the whole kingdom, might 
be made for the colonies by the Parliament in which they were not 
represented was not clear. It turned upon the question, how far 
the principle that all laws derive their sanction from the consent 
of the governed, was a part of the English Constitution, and upon 
the further question, whether the right of Englishmen to have a 
voice in the making of the laws that were to govern them was 
possessed by the colonists. 

Mr. Story says: "In respect to the political relations of the 
colonies with the parent country, it is not easy to state the exact 
limits of the dependency which was admitted, and the extent of 
sovereignty which might be lawfully exercised over them, either by 
the crown or by parliament." — Sec. 183. 

Of the authority of Parliament, he says : '' In regard to the 
authority of Parliament to enact laws which should be binding 
upon them, there was quite as much obscurity and still more 
jealousy spreading over the whole subject. . . . No acts 
of parliament, however, were understood to bind tlie colonies unless 
expressly named therein. — Sec. 187. 

'' But it was by no means an uncommon opinion in some of the 
colonies, especially in the pro]»rietary and charter governments. 



BETWEEN THE AMERICAN COLONIES AND GREAT BRITAIN. 11 

that no act of parliament whatsoever could hind them without 
their own consent." — Sec. 188. 

Mr. Story says that after the passage of the stamp act the sub- 
ject was re-examined in the colonies, especially in connection with 
the declaration hy Parliament of an absolute power of legislation ; 
and that many of the leading minds " passed by an easy transi- 
tion to a denial, first, of the power of taxation, and next, of all 
authority whatever to bind them by its laws." 

He quotes James Wilson, of Pennsylvania, as saying that he 
entered upon the inquiry " with a view and expectation of being 
able to trace some constitutional line between those cases in which 
we ought and those in which we ought not to acknowledge the 
power of Parliament over us" ; but that in the prosecution of his 
inquiries he became convinced that such a line did not exist and 
that there could be " no medium between acknowledging and deny- 
ing that power in all cases." — Story, I, 192. 

When Governor Hutchinson, in 1773, said in an address to the 
general court of Massachusetts that he " knew of no line that 
should be drawn between the supreme authority of parliament and 
the total independence of the colony," it was answered by the gen- 
eral court that Parliament was not supreme and that " the drawing 
the line between the supreme authority of parliament and total 
independence was a profound question and not to be proposed 
without their consent in a general congress." 

The governor undertook — and with some success — to point 
out the many illustrations in the legislation of the colony of the 
recognition of the validity and force of acts of Parliament. Among 
these he mentions the settlement of the crown upon William and 
Mary by an act of Parliament, and the accompanying act of Par- 
liament by which oaths of allegiance to King James were dis- 
charged and provision made for oaths to King William and Queen 
Mary. 

The Assembly, replying to this address of the governor, argued 
that the words of limitation in the charter, upon the legislative 
power of the colonies — namely, that the laws made should not be 
repugnant to the laws of England — had relation to the great 
charter and other laws (jf EIngland l)y which the lives, the liberties, 
and property of Englishmen were secured, and not to the general 
legislation of Parliament. The right to be represented in the legis- 
lative lx)dy was asserted as a fundamental principle of the English 
Constitution, and one that the Parliament could not impair or dis- 
regard. The ]iarti(ular iiii-lances cited by the governor of subniis- 



12 LKGAL ASPECTS OF THE CONTROVERSY 

sion by the colony to particular a^ts of Parliament they met by the 
declaration that the accession of William and Mary, while not pro- 
claimed by an act of the colony, was based upon the universal con- 
sent of the people. They dechired that " a purely voluntary sub- 
mission to an act, because it is highly in our favor and for our 
benefit, is in all equity and justice to be deemed as not at all pro- 
ceeding from the right we include in the legislators, that thereby 
obtain an authority over us, and that ever hereafter we must obey 
them of duty." That while " they may have submitted, swft sUentio, 
to some acts of Parliament, that they conceived might operate for 
their benefit, they did not conceive themselves bound by any of its 
acts which, they judged, would operate to the injury even of indi- 
viduals." Concluding, they said : " We think your Excellency has 
not proved, either that the colony is a part of the politic society of 
England, or that it has ever consented that the Parliament of Eng- 
land or Great Britain, should make laws binding upon us, in all 
cases, whether made expressly to refer to us or not." 

In the notes of Mr. Jefferson on the debate upon the adoption 
of the Declaration of Independence he represents John Adams, Lee, 
and others who favoied the adoption to have held this view of the 
powers of Parliament: "That, as to the people or Parliament of 
England we had always been independent of them, their restraints 
on our trade deriving effect from our acquiescence only and not 
from any rights they had of imposing them, and that so far our 
connection had been federal only and was now dissolved by the 
commencement of hostilities." The Declaration itself makes no 
direct reference to Parliament, but, in the schedule of the unlaw- 
ful acts of the king refers to the Parliament in these terms : " He 
has combined with others to subject us to a jurisdiction foreign to 
our constitution, and unacknowledged by our laws ; giving his 
assent to their acts of pretended legislation. 

It would seem that, if any power to legislate for the colonies was 
possessed by Parliament, it would include the power to est£ blish a 
system of import duties, common to them all — for this was a sub- 
ject that colonial legislation could not adequately deal with ; and 
yet the tea tax was generally resisted in the colonies as an invasion 
of their liberties. 

Mr. Curtis, in his work on the Constitutional History of the 
United States, speaking of the colonial Congress of 1774, says : 
"The second question related to the authority which they should 
allow to be in Parliament ; whether they should deny it wholly or 
deny it only as to internal affairs ; adniittiiig it as to external 



BETWEEN THE AMERICAN COLONIES AND GREAT BRITAIN. 13 

trade ; and if the latter, to what extent and with what restriction. 
It was soon felt that this question of the authority of Parliament 
was the essence of the whole controversy. Some denied it alto- 
gether. Others denied it as to every species of taxation; while 
others admitted it to extend to the regulation of external trade, 
but denied it as to all internal affairs." ' He adds that in view of 
the fact that the right of regulating the trade of the whole country 
could not be well exercised by the separate colonies the alternative 
was either to set up an American legislature that could regulate 
such trade or to give the power to Parliament. 

The Congress, he says, determined to do the latter, thinking that 
they could limit the admission by denying that the power extended 
to taxation and admitting it only so far as was necessary to regulate 
the external trade of the colony for the common benefit of the whole 
empire. " They grounded this concession," he says, "'upon the 
necessities of the case ' and ' upon the mutual interests of both 
countries' " — meaning by this expression to assert that all legisla- 
tive control over the external and internal trade of the colonies 
belonged of right to the colonies themselves. 

It is difficult to conceive of any theory of the relation of the 
colonies to the mother country that will support the pretentions 
and resistance of the colonies throughout, except that which denies 
in toto the power of the Parliament to legislate for the colonies. If 
the relation was as described in the debate upon the Declaration of 
Independence, from which I have quoted, and. by Franklin — a 
federal one like that of England and Scotland before the union — 
then the British Parliament had no authority to legislate for the 
colonies. Yet it is certain that many acts of Parliament not involv- 
ing taxation or revenues were recognized in the colonies. As an 
illustration, the act of 1766 forbidding the issue of legal tender 
paper by the colonies. 

In an essay by a Virginian, published in London in 1701, the 
uncertainty of the law in the colonial age is thus described : " It 
is a great unhappiness that no one can tell what is law and what is 
not in the plantations. Some hold that the law of England is 
chiefly to be respected, and, where that is deficient, the laws of the 
several colonies are to take ] lace ; others are of opinion that the 
laws of the colonies are to take the first place, and that the law of 
England is of force only where they are silent ; others there are 
who contend for the laws of the colonies, in conjunction with those 
that were in force in England at the first settlement of the colonies, 
and lay down that as the measure of our obedience, alleging that 



14 LEGAL ASPECTS OF THE CONTROVERSY 

we are not bound to observe any late acts of Parliament in Eng- 
land except such only where the the reason of the law is the same 
here that it is in England. But, this leaving too great a latitude 
to the judge, some others hold that no late act of the Parliament of 
England do bind the plantations, but those only wherein the plan- 
tations are particularly named. Thus are we left in the dark in 
one of the most considerable points of our rights ; and, the case 
being so doubtful, we are too often obliged to depend upon the 
crooked cord of a judge's discretion in matters of the greatest 
moment and value." 

Perhaps the following is a fair summary of the colonial view, 
just prior to the Revolution, as to the force of English statute law 
in the colonies : 

First, the general statutes enacted before the institution of any 
government in the respective colonies were of continued obligation 
there, so far as they were applicable. This upon the principle that 
such laws were enacted by Parliaments in which the colonists, 
being then residents of England, were represented. 

Second, that no later act of Parliament had any inherent valid- 
ity in the colonies ; but that the supreme legislative power was 
vested in the colonial legislature. 

Certainly this is the view of the Declaration of Independence. 
Tlie debate that preceded the formulation and general adoption of 
this view was long and heated. Particular acts of Parliament were 
impeached on narrow grounds ; but there was no holding ground 
short of the full denial of the power of Parliament to legislate for 
the colonies. The Parliament was not a representative body as to 
the colonies ; and a system which recognized the right of Parlia- 
ment to legislate for the colonies was not a representative system of 
government. A just colonial system that should preserve by suit- 
able limitations the imperial and general powers of Parliament and 
reconcile them with free institutions in the colonit s was not poss- 
ible to that generation of Englishmen ; and a system of parliamen- 
tary government without representation and without agreed limita- 
tions was impossible to that generation of Americans. 

It will be noticed that very many of the grievances, catalogued 
in the Declaration of Independence, do not involve questions affect- 
ing the constitutional or charter rights of the colonies, but rather 
bad and vindictive administration, and so a violation of natural 
rights. The English government in the colonies, as administered, 
subverted the true purposes of government, nam.ely, to secure to the 
people the enjoyment of life, liberty, and the pursuit of hai)]iiness. 



BETWEEN THE AMEniCAN COLONIES AND GREAT BRITAIN. 15 

It was not unlawful for the king to refuse his assent to laws, or to 
prorogue an asseml)ly, or perhaps to fix another than the usual 
place for its assemhling. lUit when these things were done, not in 
the exercise of a just discretion, but vexatiously to deprive the 

people of their rights or to coerce them into a surrender of them 

to punish them for things lawfully done — the executive power was 
abused. This power was not to be directed by whim or malice ; 
but like all other forms of government, for the public welfare. Pro- 
tection was the condition of allegiance ; when the existing govern- 
ment did noi, protect, the natural right became the supreme law. 
The resistance made by the colonies to the stamp tax, the tea tax, 
and other assertions of the powers of Parliament, naturally brought 
on a conflict with the king and his governors, and this conflict 
marched in the familiar and inevitable lines — edict and proclama- 
tion, thundered against the town meeting and the assembly. The 
solitary and powerless civil governor was reinforced by ships and 
soldiers, and the town meeting became a training band — it only 
remained that these should meet and war was flagrant. 

But there were some other constitutional rights that were in- 
vaded. The right to transport persons accused of crime to Eng- 
land for trial was asserted by the crown. The English cabinet 
issued orders directing Governor Barnard of Massachusetts to pros- 
ecute an inquiry into the conduct of some of the popular leaders 
in Massachusetts with a view to transporting them to be tried for 
their lives, under the pretended authority of a statute of Henry 
VIII. In 1772 royal instructions were issued to the governor of 
Rhode Island to organize a commission to inquire into the facts 
connected with the burning of the royal schooner " Gaspee. " The 
governor was directed by the commission to arrest the parties and 
to send them Avith the witnesses upon a naval vessel to England 
for trial. The colonial assembly, uj)on the appeal of the governor 
and Chief Justice Hopkins, referred the matter to the discretion of 
the chief justice, who declared that he would not give an order to 
arrest any person for transportation to England for trial. The 
commission, in its report, condemned the conduct of the com- 
mander of the "Gaspee," and after much passion had been excited 
])y this high-handed invasion of the right of trial, the matter was 
dropped. The result of these attempts was widespread excitenjent 
and indignation in the colonies. The Virginia House of Burgesses, 
on the 16th of May, 1769, passed a resolution declaring that "^ all 
trials for treason, misprision of treason, or for any felony or crime 
whatsoever, ccmuiitted and done in his majesty's said colony and 



16 LEGAL ASPECTS OF THE CONTROVERSY 

dominion, by any person or persons residing therein, ought of right 
to be had and conducted in and before his majesty's courts, held 
within his said colony, according to the fixed and known course of 
proceeding" and that the "sending such person or persons to places 
beyond the sea to be tried, is highly derogatory of the rights of 
British subjects, as thereby the inestimable privilege of being tried 
by a jury from the vicinage, as well as the liberty of summoning 
and producing witnesses on such trial, will be taken away from the 
party accused." — Frothinghavi, 236. 

In 1770 the Privy Council inaugurated a series of royal instruc- 
tions which ruthlessly disregarded not only the Ui ages of the 
colonies but directly set at naught the provisions of the colonial 
charters. They proceeded upon the theory that these royal instruc- 
tions had the force of law and practically asserted an unlimited 
and arbitrary power in the crown. 

In 1772 Governor Hutchinson, of Massachusetts, under instruc- 
tions from the crown, refused to receive his salary from the legisla- 
ture, and the judges' salaries were also ordered to be paid out of 
the crown treasury. This was regarded as making these officers 
dependents of the crown and freeing them from that restraint 
which the power to vote their salaries in the General Court im- 
posed. This "indefinite, imperious and mysterious," as Mr. Froth- 
ingham calls it, assertion of the royal prerogative seemed to put 
every right in jeopardy. 

The passage of laws vesting the nomination of the council in 
Massachusetts in the crown, investing the governor with the power 
to appoint and remove judges of the inferior courts and other 
minor officers, and the governor and council with power to appoint 
sheriffs who were to select the juries, forbidding town meetings ex- 
cept for the choice of officers, without the permission of the gov- 
ernor, and providing for the transportation of offenders and wit- 
nesses to other colonies or to England for trial, was a complete and 
undeniable expression of the purpose of the English government to 
overthrow not only local government, but liberty, in the colonies. 
(See Rise of Republic, 346-7.) 

It was said, even in the House of Lords, that these acts invested 
" the governor and council with powers with which the British 
Constitution had not trusted his Majesty and his privy council " ; 
and that "the lives, liberties and properties of the subject were put 
into their hands without control." 



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